The War Against Online Piracy - Part 2: The Alternative

The cat-and-mouse game between piracy supporters on the one hand and state authorities and major multinational companies on the other is heating up. The recent spate of persecution of websites and individuals involved in piracy opens up a new phase. [part 1]

Copyright under Capitalism

This problem has always existed for Capitalism, which is why we have patents in the first place, but with modern technology and in particular the Internet, the problem has multiplied. Downloading a film and showing it on screen involves even less effort than going to the shop to rent it or buy it. Piracy is made possible because of the development of technology. The new technology has rendered the business model of some huge multinational companies unworkable.

Capitalism is at root a system of commodity production. Profits are made on the basis of producing a good which takes up a certain amount of labour time to reproduce. The exchange value, around which the price would tend to fluctuate, is based on how many hours of labour is required in society in general in order to produce such a good. Capitalists make their profit by appropriating a certain part of this labour for themselves.

A problem arises for the capitalists when the labour required to produce a particular material object is very low but the amount of labour required to produce the plan or schema of the object is very high. Take medicines for example. They are very expensive to research but not very expensive to then replicate. This is even more the case for music and movies. The original recording is very expensive to produce, but to replicate that nowadays is virtually free. All that is required is a computer and an internet connection, which today is present in most homes in the advanced capitalist countries. To store the files, you can, today, buy a hard drive that holds 160,000 songs or 840 movies for $60.

The multinational companies have in response attempted to block the development of new technologies. First, they attempted to ban mp3-players in order to prevent people from listening to mp3s on the move (RIAA v. Diamond Multimedia). They tried to promote MiniDisc as a CD alternative but it was a complete flop and only ever took off in Japan. Clearly the new technology with music files was far superior and allowed for the creation of very small devices that could hold very large amounts of music. Apple seized the opportunity in 2001 with the iPod. It proved to be a massive success, and reinvigorated the whole of the company, which had been struggling.

Originally the industry had been demanding that portable music file players should only be able to play files with copyright protection, i.e. not mp3 files. Their reasoning was: if one can get the music for free, why pay? The success of the iPod, however, forced them to cave in. Belatedly, one after another, the music companies signed agreements with Apple to allow them to sell their music online, even if it was possible to mix the purchased music with pirated music.

Instead, they started to use the state to persecute those involved in piracy. A problem quickly arose. Much of copyright legislation was designed for the purpose of protecting against other companies. It wasn’t really designed to target consumers or users of the product who share it on the internet with unknown individuals. The record companies needed to show that somehow the individuals or companies involved had been making a profit out of the piracy. In spite of the huge resources that have been ploughed into prosecuting piracy, very few cases against users have ended in conviction.

Faced with increasingly and the seeming inability of the state to prevent it, the industry has opted for lobbying for even heavier repression. First of all, they have attempted to change legislation to sharpen it up against end-users and those who facilitate piracy. They have also attempted to give the state as well as the industry itself increased powers of surveillance over the internet. Notably, the Swedish government a few years ago proposed that Internet Service Providers in the EU should store all traffic of their clients for 6 months. Other proposals have given industry associations the right to register IP addresses of suspected pirates, which would otherwise have been a breach of data protection legislation.

The problem is that you can’t really fight the economics of piracy with legislation. One of the most popular file sharing technologies, BitTorrent, has an estimated 250 million users worldwide and it is a constantly growing number. Last November, a report by Sandvine put file sharing at 12-30% (depending on the continent) of total internet traffic. Yet, that is only one of many ways of accessing pirated media. Many people get their music from YouTube or watch movies and TV shows on websites that make them available for free. Megaupload was one of the latter kind but has fallen foul of the law. It is quite clear that in spite of the best efforts of the industry and the state, piracy is not going away.

In a sense, online piracy shows the inability of capitalism to cope with modern technology. Instead of developing the Internet and fully utilising its vast potential, capitalist states across the world are currently engaged in a campaign of suppression of Internet innovation. File sharing makes it possible to distribute culture very easily and at minimal cost. It could make it possible to make all kinds of music, movies and TV shows available all over the world. It would enable a tremendous cultural exchange. However, rather than using this vast potential, governments and the industry are trying to prevent its further development.

The patent hypocrisy

The record industry makes big play of protecting poor artists. Of course, there are many artists who make a substantial part of their living out of the pennies they get from sold records or played songs. Not just the big names, but also session musicians get parts of their meagre incomes this way. Yet, it is rank hypocrisy when the big record companies complain about copyright.

It is well-known in the music industry that stealing other people’s materials is endemic. One famous case is that of Solomon Linda, who wrote the original on which Disney’s “The lion Sleeps Tonight” was based. He got 10 shillings ($2) for his song, in spite of it becoming a massive hit with The Weavers. The record company kept the band members in the dark about the copyright problems that arose. In the end Solomon Linda died penniless, although his family, backed by the South African government, has recently managed to extract some money out of the industry. Bob Dylan is another major star who has made a fortune out of having a – to his own benefit – liberal interpretation of copyright and out-of-court-settlements have followed his career. Michael Jackson also borrowed heavily for many songs, without accrediting others for their work (see for example Postscript: Michael Jackson). In reality, the industry lives and breathes copyright infringements, and when, as is often the case, those whose rights were infringed lacked the means to take it up in court, their rights stayed ignored.

The copyright system in reality allows the big corporations to trample all over the weak, either by breaching the copyright of poor, new artists or by enforcing their own rights.

What do the “pirates” want?

Aaron Swartz, who was mentioned in the first part of this article, produced a manifesto, entitled the Guerilla Open Access Manifesto, which in a very clear manner describes the strivings of the piracy movement. Although Swartz himself seems to be mainly concerned with scientific and cultural knowledge, his arguments apply equally well to music, movie and software piracy. He explains the position very well. Consider the following passages:

“Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations.”

This is very accurate. It is a complete scandal that academic institutions and corporations lock away the collected knowledge of humanity. Our scientific discoveries are only kept accessible to those who can afford to pay the increasingly outrageous tuition fees of universities. Jstor, who Swartz tried to copy, charges outrageous prices for access, although it is obviously a tremendous technological step forward.

Swartz explains how many people share access to this art through lending passwords, books etc.

“But all of this action goes on in the dark, hidden underground. It’s called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn’t immoral — it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.”

Aaron SwartzThis is precisely what the pirates are doing as well. Most of people involved with piracy do it without particular personal benefit to themselves, but at great risk. Kim Dotcom is obviously an exception. The whole peer-to-peer community in general and BitTorrent in particular rely on the fact that the average user uploads at least as much as they download. This is working very well in spite of the fact that it is perfectly possible for the user to not share anything with others. There are teams of programmers who crack copyright protection on computer software and games, without any kind of monetary compensation. There are people who record video in cinemas, despite the high risk involved. There are people who copy DVDs and music CDs and put them online. It is a true testament to solidarity among human beings, far from the self-interested individuals that the bourgeois claim that we are.

Swartz also explained precisely the background to what happened to him:

“Large corporations, of course, are blinded by greed. The laws under which they operate require it — their shareholders would revolt at anything less. And the politicians they have bought off back them, passing laws giving them the exclusive power to decide who can make copies.”

Indeed, these laws over the past few years have been sharpened in order to provide a more efficient tool at the hands of the industry against the millions that are involved in some way or other with Internet piracy. One might add that it’s not just politicians but also police officers and judges who have been bought by the industry. The three cases mentioned above make that clear. One could also add the journalists who constantly take the side of copyright holders.

Let’s for a moment consider what kind of companies we’re dealing with. Vivendi, the French company that owns Universal Music made a neat €3.7 billion profit in 2011. Given that their total revenue was €28.8 billion that gives them a 13% profit. Sony Music Entertainment registered revenue of €3.5 billion, a €300 million profit, which is around 8%. Time Warner had revenue of $29 billion in 2011 and a profit of $5.8 billion, or roughly 20%. These companies have huge resources and most of them are very profitable.

As Marxists we have to completely agree with the problem that Swartz poses and we remain implacably opposed to all legal cases against online piracy. However, the solution that Swartz proposes is somewhat unsatisfactory:

“We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”

We do not agree that the fight for access to culture can be fought on an individual basis. All those who are willing to put their neck on the line for the sake of spreading knowledge, culture and entertainment by breaking copyright, will not fundamentally change the present position. Piracy or Open Access will not be able to solve the problems that it sets itself.

Encryption is the latest stage in the cat-and-mouse game. In order to keep one step ahead of law enforcement, the activists now turn to encrypting traffic and masking their IP addresses. Note for example The Guerrilla Open Access Cookbook which attempts to help users implement Swartz’s manifesto. These methods involve layers of encrypted connections to obscure the trail. It is way too complicated for the average user. They require a high degree of technical knowledge, a lot of time and cannot realistically be used for peer-to-peer activity. They remain the methods of a relatively small circle.

There have been various attempts to solve this problem using peer-to-peer methods. The Tor Project, although not very good for file sharing, has achieved a high degree of anonymity for web browsing.It basically allows the user to redirect their communication through other users of Tor, thus obscuring who is actually accessing what. Kim Dotcom has also launched his new project Mega, which is supposed to provide file hosting with 1024 bit encryption. That kind of level of encryption is pretty much impossible to break without knowing the password.

There is a trade-off between encryption and security and usability. The more layers of security you add, the more difficult it will be to use and the slower the speed will be. The more difficult it is to use, the smaller the community will be, which makes peer-to-peer less useful.

In the end the “pirates” can’t win but neither can the copyright lobby. Piracy is far too widespread and easy on the internet. So, the cat-and-mouse game will continue. Governments will impose harsher penalties and put more resources into prosecution and the pirates will respond with increased anonymity.

How to fund the arts?

Creative Commons, attribution, non-commercial, share-alike licenseThere is another question which the pirates struggle to answer. If everybody gets to download for free, who is to fund artists? The various answers to that question are unsatisfactory. Of course, some of the revenue can come through concerts, merchandise and the like, but that is not true for all art, nor is it true for academic journals.

Equally, one might ask, do makers of art have no rights over their creations whatsoever? A few years ago, for example, a number of musicians, including Billy Bragg, complained that the BNP was selling their music to fund the party. The Creative Commons community, which promotes the spreading of copyright-free material, has recognised this problem. They provide several license variations. Most popular are licenses that require attribution and that prohibit commercial use.

These problems with piracy have divided even left-leaning artists. Many sympathise with free access to art but are not so sympathetic to being asked to work for free. Unions representing artists and writers have therefore often found themselves in the same camp as the multinational companies on this question. Consider for example the British Musicians’ Union which has launched a campaign called Music Supported Here in response to “the rise in Internet piracy”. The reason why they take that position is not only to defend the interests of multi-millionaire artists but for the thousands of artists that are struggling on wages that are below the poverty line.

As Marxists we recognise that artists have rights to their art. They have the right to be paid for their work and also ought to have some measure of control over how their art is used. Yet, we also completely agree that art and music ought to be accessible by all.

The fact is that arts under capitalism are extremely underfunded, with the exception of a few big names. In general, artists and actors are paid very low wages and so are a whole range of supporting staff (technicians, administrators, etc.). The culture industry in general has some of the worst working conditions. The model of financing of art which is being defended against piracy is fundamentally flawed. It is not a model based on safeguarding the interests of the workers but the profits of the multinationals. Art production for profit provides us with neither high quality nor cheap art. It does not take care of the interests of the workers, or that of society as a whole.

The first step towards a new model must be to nationalise the media industry, under workers’ control. This would enable us to use the profits that are still made to invest in culture, both the quality and the conditions of the workers. The state should guarantee a decent wage and working conditions for all artists and other workers in the sector. This will remove the need to live off the measly and uncertain revenue that artists get from sales. The money to fund this must come from nationalising other sectors of industry. Many hardware manufacturers, like Apple, are for example making huge profits. Gradually, the whole industry must be geared towards providing arts and culture for free, funded instead by society as a whole.

As part of a socialist society we would thus free the industry from the shackles imposed on it by profit making. Yet we would also make culture and information accessible to everyone.